Doyle v. Dong

591 N.E.2d 1084, 412 Mass. 682

• Court: Massachusetts Supreme Judicial Court
• Decided: May 18, 1992
• Status: Published

Opinions

Lynch, J.

The plaintiff brought an action for medical malpractice in the Superior Court claiming the defendant was negligent in failing to diagnose her fourteen month old son’s epiglottitis,² and in discharging him from emergency hospital care. The jury returned a verdict on special questions for the defendant and the plaintiff appealed. The Appeals Court reversed the judgment reasoning that it was error for the trial judge to admit in evidence a portion of a hospital record containing information recorded from an unidentified source at another hospital. We allowed the defendant’s application for further appellate review. We affirm the judgment of the Superior Court.

We summarize the factual underpinnings which are more fully set forth in Doyle v. Dong, 30 Mass. App. Ct. 743, 744-745 (1991). On June 21, 1983, at 4:15 a.m., the plaintiff took her son, who was feverish and had difficulty breathing, to the emergency room of Sancta Maria Hospital. The defendant examined the child but was unable to make a successful visual throat examination. The defendant then ordered a chest X-ray and a blood test. The blood test demonstrated a markedly elevated white blood count. Next, the defendant consulted the child’s pediatrician, Dr. Samuel Andonian, over the telephone. Dr. Andonian agreed to examine the child later that day. The defendant concluded that the child had an early viral syndrome and discharged him.

Later that morning, the child stopped breathing and the plaintiff rushed him to the emergency department of Symmes Hospital. There Dr. James Campbell and Dr. Chai Kwon, an anesthesiologist, performed an intubation in an attempt to resuscitate the child. The Symmes Hospital record indicates a diagnosis of respiratory arrest, with a possibility of sepsis. There is no mention in the Symmes Hospital medical record of any abnormality associated with the epiglottis. Subsequently, the child was transferred to the intensive care unit at Children’s Hospital in Boston. Dr. Louis Rubin, the admitting physician at Children’s Hospital, made a contemporaneous note in the Children’s Hospital admission record that the child’s epiglottis was “normal” while at Symmes Hospital. Dr. Rubin was not part of the Children’s Hospital transfer team. The child remained in a coma for three days while at Children’s Hospital; he died on June 25, 1983. All the medical experts agreed the immediate cause of death was an inability to breathe precipitated by epiglottitis.

The principal issue is whether the reference in the Children’s Hospital record noting the child’s epiglottis as “normal” while he was at Symmes Hospital was properly admitted. Also at issue is whether a posttreatment letter written by the defendant and incorporated into the Sancta Maria Hospital record was properly admitted.

1. The “normal" epiglottis notation. The defendant contends that, under G. L. c. 233, § 79 (1990 ed.), the judge properly admitted the Children’s Hospital record containing the notation. In response, the plaintiff argues that the record was inadmissible under the statute since it contained second-level hearsay from an unidentified source. We disagree with the plaintiff.

General Laws c. 233, §. 79, provides in pertinent part: “Records kept by hospitals . . . under [G. L. c. Ill, § 70] shall be admissible ... as evidence ... so far as such records relate to the treatment and medical history of such cases ....'" The statute provides an exception to the hearsay rule so as to allow hospital records to be admitted to prove the truth of the facts in the record that relate to treatment and medical history. Commonwealth v. Copeland, 375 Mass. 438, 442 (1978). The fact that the record may contain second-level hearsay is of no consequence as long as the broad requirements of the statute are met. Those requirements make admissible “those portions of records relating to treatment and medical history which possess the characteristics justifying the presumption of reliability.” Bouchie v. Murray, 376 Mass. 524, 528 (1978). “[E]ntries made in the regular course of the institution’s operation from the personal knowledge of the recorder or from a compilation of the personal knowledge of those who have an obligation in the course of their employment to transmit that medical information to the recorder are admissible under the exception” (emphasis added). Id.

The purpose of the statute is to admit presumptively reliable hospital records in evidence without the need of calling numerous hospital personnel as witnesses. Bouchie v. Murray, supra at 528. The presumption arises because the entries relating to treatment and medical history are routinely made by those responsible for making accurate entries and are relied on in the course of treating patients. Id. “In the case of a hospital record, the offering party must show that the evidence comports with the requirements of G. L. c. 233, § 79.” Commonwealth v. Dunne, 394 Mass. 10, 16 (1985).

In this case, 'the notation, “At Symmes Hosp. E[mergency] R[oom] . . . epiglottal c[ulture] impression n[orma]l epiglottis,” is clearly a statement relating to the treatment and medical history of the child. The question then becomes, does this information possess the characteristics justifying the presumption of reliability? The notation was made contemporaneously with the child’s transfer. There was ample evidence to support the conclusion that it is routine for the transferring hospital to transmit such information to the receiving hospital when transferring a patient. As such, the medical staff at Children’s Hospital would rely on this information in treating the child while in its care.

The entry in the record containing the disputed portion³ is quite detailed. It begins: “At Symmes Hosp. E[mergency] R[oom] . . . .” It then details the child’s pulse rate and blood pressure, the results of specific laboratory tests, including the chest X-rays, and the kinds and dosages of medication the child received. Next, it describes the child’s intubation, mentions that the child’s pupils were dilated, and states “epiglottal c[ulture] impression n[orma]l epiglottis.” Finally, it notes: “He was still hypotensive (but ? 90/50) [and] received 10cc/lg NS x2.”

The “fourth requirement” of Bouchie relied on in the dissent has no application in these circumstances. There the court was discussing voluntary statements of'third persons in contrast with the third paragraph which makes admissible information from persons who are under a medical obligation to transmit such information. The nature of the information and its level of detail warrant the conclusion that Dr. Rubin received the Symmes Hospital information from someone, or from a report prepared by someone, on Symmes Hospital’s medical staff who either personally treated the child or obtained the information from someone who had, and therefore had an obligation to transmit that information to Dr. Rubin, the recorder at Children’s Hospital, when the child was transferred. Dr. Rubin could not have otherwise obtained such detailed information concerning the child’s care while at Symmes Hospital. Thus, the circumstances in which the entries were made and their level of detail indicate that those entries in the Children’s Hospital record “possess the characteristics justifying the presumption of reliability” normally accorded hospital records. Bouchie v. Murray, supra at 528. Therefore, the judge could properly conclude that notations in the Children’s Hospital record regarding the child’s care at Symmes Hospital were admissible under the statute as statements of treatment and medical history made by those obligated in the course of their employment to transmit medical information to the keeper of the record.

It should be kept in mind that, as we said in Bouchie v. Murray, supra at 527-528, “the statute allows admission of the substantive content of hospital records because of the presumption of reliability which attaches to statements relating to treatment and medical history in these records. This presumption of reliability of the information contained in hospital records arises primarily from the fact that entries in these records are routinely made by those charged with the responsibility of making accurate entries and are relied on in the course of treating patients.” Nowhere in the statute or in the decisions of this court is it suggested that this presumption of reliability disappears when the source of the information is unknown or that the information relied on is second-level hearsay.

The failure to identify the source of the information from Symmes Hospital goes to the weight of the evidence afforded the Children’s Hospital record and not its admissibility. See Commonwealth v. Franks, 359 Mass. 577, 580 (1971) (results of laboratory tests contained in hospital record are admissible even though identity of person performing the test is unknown). See also P.J. Liacos, Massachusetts Evidence 334 (5th ed. 1981) (“And the absence of personal knowledge of the maker of the record goes to the weight of the evidence — not its admissibility — since the reliability of such records is predicated on the fact that they are routine reflections of day-to-day operations”). But see Ricciardi v. Children’s Hosp. Medical Ctr., 811 F.2d 18, 21-22 (1st Cir. 1987) (failure to identify source of information renders hospital record inadmissible under G. L. c. 233, § 79). Moreover, “hospital records containing facts relevant to medical history or treatment are admissible without need for, and despite the absence of, testimonial corroboration.” Commonwealth v. Copeland, 375 Mass. 438, 442 (1978).

In sum, this statute relies on a pragmatic test of reliability. Is the information of a nature that is relied on by medical professionals in administering health care? It is of no consequence that, under similar statutes and decisions, it is required that each level of secondary hearsay falls within some exception to the hearsay rule. A health care professional looking at a hospital record would not be concerned with levels of hearsay, but rather the nature of the information supplied. That is the test of the statute to be applied under the supervision of the trial judge who has the discretion to exclude the record in appropriate circumstances.

2. The posttreatment letter. We agree with the Appeals Court that the posttreatment letter of the defendant which was incorporated into the Sancta Maria Hospital record⁴ was inadmissible. We conclude, however, that the letter was merely cumulative of other evidence and, therefore, its admission was not prejudicial.

The day after treating the child the defendant learned the child was in a coma at Children’s Hospital. The defendant then wrote a letter, which was later incorporated into the Sancta Maria Hospital record, recounting his telephone conversation with the child’s pediatrician, Dr. Andonian. The letter mentions the symptoms the defendant observed during his examination of the child and Dr. Andonian’s response on being informed of those symptoms. Included in the letter is a statement which the plaintiff used to impeach the defendant, “I did also mention the possibility of croup to him, although it was not a high clinical possibility at the time based on the absence of respiratory distress, stridor and ‘barking’ cough.” It then states that Dr. Andonian responded in the negative when asked whether the child should be started on ampicillin antibiotics.

At trial, both the defendant and Dr. Andonian testified regarding the substance of their telephone conversation. The defendant attempted to shift responsibility from himself to Dr. Andonian for not recognizing the possibility of the presence of epiglottitis. The defendant also testified he did not diagnose the possibility of croup and therefore did not consider the differential diagnosis of epiglottitis. Although the plaintiff objected to the admission of the letter, it was this statement of the defendant that the plaintiff sought to impeach through the use of the letter.

Except for denying that the defendant mentioned the possibility of croup, Dr. Andonian confirmed the defendant’s testimony concerning the information contained in the letter. Dr. Andonian testified that the defendant telephoned him and informed him of the following: Fever; elevated white blood count; nonspecific respiratory symptoms; negative chest X-ray; no drooling; throat, ears, and pharynx normal. Accordingly, the letter was merely cumulative of the testimony of the defendant and Dr. Andonian. No prejudice arose from its admission. Commonwealth v. Izzo, 359 Mass. 39, 43 (1971). We need not reach the other issues raised in this case.

Judgment of the Superior Court affirmed.

2 Epiglottitis is a bacterial infection of the epiglottis, a small flap of tissue that covers the trachea during swallowing to prevent the ingestion of food into the lungs.

3 The plaintiff challenges only the “epiglottal cfulture] impression n[orma]l epiglottis” notation contained in the Children’s Hospital record.

4 The letter states as follows:

“22 June 1983

“Joseph G. Maloney MD

Sancta Maria Hospital

Cambridge, Massachusetts

“Dear Dr. Maloney:

“In reference to the case of Matthew Doyle seen at the Sancta Maria Hospital Emergency Room early on 21 June 1983, I would like to clarify a point that may not have been stated on the encounter record. After evaluating the patient, I did call his primary pediatrician, Dr. Andoni[a]n at home to discuss my findings, particularly the high fever and elevated white blood count. I did also mention the possibility of croup to him, although it was not a high clinical possibility at the time based on the absence of respiratory distress, stridor and ‘barking’ cough. Dr. Andoni[a]n felt it was reasonable to send the patient home with followup later that morning, which I then recommended to the mother, and to which the mother was agreeable. I asked Dr. Andoni[a]n concerning starting ampicillin antibiotics, but Dr. Andoni[a]n did not feel strongly that this was necessary.

“Stephen Dong MD”